Adami, J.These two second appeals arise out of a suit in which the plaintiffs, as proprietors of Mouza Nawtanwa, sought for recovery of possession of certain lands in the village from the defendants 1st and 3rd parties. The village was in 16-annas mokarari istimrari of three persons who, in 1902, granted a sadhaua pataua lease to Defendant No. 1 who was the owner of the Bhasurari factory, and who is now represented by his wife, Mrs. Coffin. In 1907 the plaintiffs purchased the mukarrari share but Defendant No. 1 continued in possession under the sadhaua pataua up to 1319; that is to say, 1911--1912. When the period of the sadhaua pataua lease had expired in 1320 the plaintiffs granted to Defendant No. 1 a simple lease from 1321 to 1327. After the expiry of this lease in 1327 the defendant gave up possession of the lands leased with the exception of the lands, which are the subject of the suit. These lands were divided into six different clauses in the schedule to the plaint.

2. Schedule 1Kh was shown in the Settlement Record to be the kasht lands of the factory, Schedule 1Kh was entered as the shikmi lands of the defendants 2nd party as under-tenants of the factory and Schedule 1G was shown as the kasht of the defendants 3rd party, Schedule 2K was shown as the kasht of the factory and gairmazrua: Schedule 2Kh was entered as the kasht of the defendants 3rd party and Schedule 2G as the gairmazrua lands of the factory. It is the plaintiffs case that on the expiry of the lease the defendants should have given over these lands to the plaintiff. It appears that Mr. Coffin had held a lease of the village previous to 1902 when he obtained the sadhaua lease. The defendants did not contest the plaintiffs claim to Schedules 2K and 2G lands for they admitted them to be the gairmazrua lands of the plaintiffs wrongly recorded in the name of the defendants so that with regard to these lands there is no appeal for both the Courts below have found that the defendants had no claim to them.

3. Defendant No. 1 in his written statement claimed that 11.42 acres had been purchased by him with the consent of the landlord, who had registered his name in his sherista, while all the rest of the lands in that schedule and the lands in Schedule 1Kh had been acquired by him by purchase in Court sales in the execution of rent-decrees against different tenants, and that he had been in possession of all these lands, either himself or through his sub-tenants, ever since the purchase, and had acquired the right of occupancy, which the plaintiffs had admitted by their patta dated 1322 F.S. The lands in Schedule 1G of the plaint had been settled by Defendant No. 1 with tenants after the abandonment of surrender of the lands by previous, tenants; the lands in Schedule 2 Kh had been in possession of the tenants from before the time when Defendant No. 1 had received the lease of the village and they had their houses on these lands.

4. It was the plaintiffs case that on the expiry of the lease they settled tenants on the lands and that, when these tenants sought to cultivate the lands there was opposition resulting in criminal proceedings in which the men of the plaintiffs were convicted, and this gave rise to the present suit.

5. The Courts below have found that this allegation of the plaintiffs was not true, and that the defendants have been in possession of these lands all the time up to the date of the suit. This finding has not been contested before this Court.

6. The learned Subordinate Judge found that the purchase of holdings made by Defendant No. 1 having been made before 1907, when Section 22 of the Bengal Tenancy Act was amended defendant would acquire occupancy rights in those lands, and that the consent of the plaintiffs or of their predecessors-in-interest would not be necessary to validate those purchases. Defendant No. 1, therefore, had acquired the right of occupancy in the lands, or, at any rate, a non-occupancy right, and that the plaintiffs suit with regard to these lands would be barred by limitation. This finding related to the lands in Schedule 1K and Schedule 1Kh, for the lands in Schedule 1Kh are really the raiyati lands of Defendant No. 1 put in shikmi possession of the under-tenants, the defendants 2nd party.

7. With regard to the lands in Schedule 1G and Schedule 2Kh in possession of the defendants 3rd party, with regard to which defendant No. 1 asserted that he had made settlement with the defendants 3rd party after surrender or abandonment by the tenants of the holdings, the learned Subordinate Judge has found that as the settlement was made in 1914 the defendants 3rd party could not have acquired the right of occupancy in them. He, however, did not come to any finding with regard to the right of the plaintiffs to eject the defendants 3rd party as being non-occupancy raiyats. He decreed the suit in part as against the defendants 3rd party as regards all the lands in Schedules 1G and 2Kh. With regard to the gairmazrua lands in Schedule 2Kh he found that Abdul Karim Sani had failed to prove that these defendants had been recognized by the landlord or that he had obtained the eands from Plaintiff No. 19. With regard to the lands in all the Schedules other then 1G, and 2Kh and the lands Schedules 1K and 2G, the learned Subordinate Judge dismissed the plaintiffs suit.

8. Two appeals were filed against this judgment: one was by the defendants 3rd party and the other was by the plaintiffs and there was cross-appeal by Defendant No. 1 regarding the costs allowed to the plaintiffs with respect to the lands in Schedules 2K and 2G. The learned District Judge found that the lands of Schedules 1K and 1Kh had been acquired by Defendant No. 1 in or before 1905 and that thus he had acquired a right of occupancy. He considered the argument that the sadhaua pataua was a mortgage and not a lease and that Defendant No. 1 could not acquire rights for himself while he was a mortgagee, but must pass on the benefit of all accessions of the property to the mortgagor on the expiry of the mortgage; but he came to a finding that the sadhaua pataua was not a mortgage but a lease of lands for a fixed period, and he remarked that the point had not been raised before the Subordinate Judge.

9. The chief reason why the learned Subordinate Judge allowed the claim of the plaintiffs against the defendants 3rd party was that they had failed to show that they were settled raiyats of the village such as they claimed to be, because they had failed to produce the Cadastral Survey khatian to show that they held occupancy rights in the village. On appeal, however, these defendants produced the Cadastral Survey khatians which the learned District Judge examined and allowed to be taken in evidence, and from the entries in those khatians he found that as a fact four of the defendants 3rd party, namely, Ismail, Muharram, Walayat and Abdul Karim were settled raiyats of the village and had acquired occupancy rights in the lands held by them, whereas the defendants Thakur, Ramdat and Bindesari, who had not produced any Cadastral Survey khatians failed to prove that they were occupancy raiyats. He, therefore, allowed the appeal of the four defendants I have named and dismissed the appeal of Thakur Ramdat and Bindesari. The result then was that the plaintiffs appeal was dismissed and the appeal of the four members of the defendants 3rd party was allowed. The cross-objection of the defendants 1st party regarding the costs in respect to the lands in Schedules 2K and 2G was allowed, the District Judge holding that since the defendants 1st party had never asserted any claim to those lands, they should not be subjected to costs.

10. The first point taken is that the defendants 1st party failed to show which lands were purchased at auction sales and which were surrendered and abandoned, it being contended that in any case the lands surrendered or abandoned would have to go back to the landlords on the expiry of the lease.

11. Now looking to the written statement, It was found that Defendant No. 1 averred that none of the lands in Schedule 1K or 1Kh were lands which were surrendered or abandoned. The lands in Schedule 1G had been settled by Defendant No. 1, after their abandonment, with the defendants of the 3rd party. The plaintiffs failed to show, as far as one can see from the judgments of the lower Courts, that any of the lands in Schedule 1K or 1Kh, were lands which had been surrendered or abandoned by the tenants and taken into possession by Defendant No. 1. With regard to the lands in Schedule 1G, it has been found by the lower Court that the tenants with whom these lands were settled by Defendant No. 1 were settled raiyats of the village and having acquired an occupancy right they could not be ejected.

12. The next contention was that the sadhaua pataua was really a mortgage and not a lease as found by the District Judge. Being a mortgage, it is argued that the Defendant No. 1 was bound to make over to the landlord all the lands which he had acquired by abandonment, surrender, or purchase on the expiry of his sadhaua pataua lease.

13. Now with regard to this: after looking at the sadhaua pataua, I am of opinion that it was in reality a mortgage. The executant of the document states that he is in need of money and, therefore, "I mortgage 8 annas of the pataua property in security of Rs. 4,500." Under the terms of the sadhaua pataua principal and interest were to be satisfied out of the rents and profits. But even so, the point was not taken in the trial Court that the plaintiffs were entitled to all accessions, and, furthermore, when the sadhaua expired in 1912, the plaintiffs made no claim to the accessions nor did they offer to pay to the mortgagee the expense of acquiring the accessions; they in fact allowed Defendant No. 1 to remain in possession of the lands as an occupancy raiyat. u/s 63 of the Transfer of Property Act, if the plaintiffs had desired to have possession of these lands acquired by Defendant No. 1, they should, on the expiry of the mortgage, have tendered to Defendant No. 1 the costs incurred by them in making the acquisitions. The plaintiffs never treated the lands as accessions or made any claim. Under the conditions of the sadhaua pataua there was really no redemption. The debt and interest were paid out of the rents and profits, and when the term had expired, the whole of the principal and interest had been paid; so that even if the sadhaua pataua was a mortgage, the plaintiffs cannot now come forward and claim the lands acquired by Defendant No. 1 before 1907.

14. The next contention is that the learned District Judge was wrong in allowing the Cadastral Survey khatian to be filed during the appellate stage, and that there was no reason to permit the additional evidence. The learned District Judge gave reasons for admitting the evidence and they seem quite sound. It was necessary to determine the point whether the defendants 3rd party were in fact settled raiyats, and the evidence was wanting. But Mr. Lachmi Narayan Singh points out that Exs. L to L-4, which the District Judge says are Cadastral Survey khatians are in fact Revisional Survey khatians and cannot help the defendants 3rd party. It seems that the learned District Judge made some mistake in referring to the Cadastral Survey khatians as Exs. L to L-4: There are Cadastral Survey khatians on the record which show that the four defendants of the 3rd party or their ancestors held occupancy rights in the pillage with regard to other lands and thus they are settled raiyats. It was to these other papers that the learned District Judge was evidently referring, but he made a mistake in calling them Exs. L to L-4. There is no doubt in my mind that the District Judge, as he stated, saw the Cadastral Survey khatians showing these defendants to be settled raiyats.

15. I see no reason to find that the decision to which the District Judge has come is wrong, and I would, therefore, dismiss both the appeals with costs.

Macpherson, J.

16. I agree to the order proposed.